NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1920-20
JANE ROCKS and
STEPHEN POLLOCK,
Plaintiffs-Appellants,
v.
PNC INVESTMENTS, LLC
and BRIAN D. DUNN,
Defendants-Respondents.
_____________________________
Submitted February 16, 2022 – Decided April 4, 2022
Before Judges Hoffman, Whipple, and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-0114-19.
Zarwin Baum DeVito Kaplan Schaer Toddy, PC,
attorneys for appellants (Zachary A. Silverstein, on the
briefs).
Seyfarth Shaw, LLP, attorneys for respondents
(Howard M. Wexler and Lisa L. Savadjian, of counsel
and on the brief).
PER CURIAM
Plaintiffs Jane Rocks and Stephen Pollock appeal from the February 19,
2021 Law Division order granting the summary judgment dismissal of their
complaint alleging age discrimination. In their complaint, plaintiffs alleged that
defendants, PNC Investments, LLC (PNC) and Brian D. Dunn (plaintiffs'
supervisor), violated the New Jersey Law Against Discrimination, N.J.S.A.
10:5-1 to -50 (LAD), by "engag[ing] in discriminatory treatment of plaintiffs
because of their age," which "caused a hostile workplace" and their
"constructive discharge." We affirm.
I.
We discern the following facts from the record, viewed in the light most
favorable to plaintiffs, the non-moving parties. Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 405-06 (2014). Plaintiffs were employed by PNC as
Financial Advisors (FAs). Part of the role of an FA is to get to know PNC branch
bank employees so that the employees would refer customers to the FA to set up
appointments. Because bank branch employees have many responsibilities, FAs
are instructed to speak with them regularly, teaching employees how to identify
a potential customer, how to introduce the customer to the FA, and how to
overcome a customer's reluctance to meet with an FA. Defendant Dunn,
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plaintiffs' regional sales manager, instituted a requirement that FAs meet with
fifteen potential customers weekly.
Dunn was in his mid-fifties when he served as plaintiffs' supervisor.
Pollock was over the age of fifty when Dunn hired him. At his deposition,
Pollock admitted that Dunn never took a branch away from him; in addition,
Pollock acknowledged that he voluntarily gave up the Moorestown branch.
Dunn did take one branch – the Springdale branch – from Rocks, in April
2017, seventeen months before her resignation. One of the reasons Dunn took
the branch from Rocks was criticism he received about Rocks from the
Springdale branch manager, who reported that Rocks had not developed a good
rapport with the employees and customers of that branch, and that her attitude
was rather abrupt. The branch was reassigned to a new FA, Daniel Burns.
Because PNC was creating a new territory for Burns, at the same exact time
Dunn reassigned the Springdale branch to Burns, Dunn also reassigned the
Lumberton branch from FA Phil Patragnoni to Burns; in addition, Dunn
reassigned the Cedar Hill branch from another FA, Dave Dougherty, to Burns.
Patragnoni and Dougherty were twenty-five and twenty-three years younger
than Rocks, respectively. Rocks voluntarily chose to give up two other
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branches, the Meeting House branch and the Mount Laurel branch. Rocks
admitted that Dunn had nothing to do with her loss of these two branches.
Pollock regularly spoke of his intent to retire. Pollock announced to
several PNC employees – including in a May 4, 2015 email to the President of
PNC Investments – that he planned to retire in 2018, at the age of seventy, which
is the year he ultimately resigned from PNC. Pollock spoke openly and
frequently of his retirement plans with his fellow FAs, including Rocks, Thomas
Becker, and Tanya Brown, and also with Dunn. In 2017, Pollock noted in a
communication to Becker that he was "going to try to make it one more year.
[Seventy] is it." Pollock wrote to Becker that being fired and suing for age
discrimination "would be the best thing that could happen!" Pollock boasted to
another colleague that – while he had not scheduled his required fifteen
appointments – he and Rocks "had an advantage that you don't. We are at
retirement age."
Defendants established that plaintiffs failed to meet their revenue goals
from 2016 to 2018. Pursuant to PNC policy, an underperforming employee is
first placed on a "Performance Evaluation Plan." A verbal warning follows. The
next step is a written warning. Probation is the last step in the process. Plaintiffs
received verbal and written warnings regarding their performance.
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In her 2017 evaluation, Rocks received a "meets some expectations"
rating. The evaluation noted that she missed her annual revenue goal by twenty-
one points, down ten percent from 2016. Although Rocks had missed her goals
for several years, Dunn first issued a verbal warning to her on November 1,
2017. At that point, Dunn informed her that she needed to schedule fifteen
weekly appointments and demonstrate regular client outreach.
On April 12, 2018, Dunn issued a written warning to Rocks because she
was not creating enough activity to meet her weekly appointment goal. Dunn
further noted that Rocks added just one client from November 2017 to March
2019. Beginning July 9, 2018, Dunn officially placed Rocks on probation,
which was set to end October 7, 2018. The Probation Notice provided:
Jane is not meeting expected performance behaviors
and activities of a Financial Advisor. Specifically, Jane
is not creating enough activity to meet a set
appointment goal. The goal is [fifteen] per week and
Jane has been averaging [ten] per week since her
written warning. Planning in 2018 has been
inconsistent overall. When it comes to coaching
employees, providing quick starts, effectively
participating in multi-channel appointments, and
reviewing insights for opportunities[,] the outcomes
have been inconsistent as it pertains to increased
activity and business outcomes.
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Rocks admitted her revenue targets decreased yearly, rather than
increased, until her resignation. Rocks resigned on September 28, 2018, just
before the end of her probation period.
As for Pollock, his 2017 year-end evaluation stated that he "meets some
expectations," but noted that he was behind his revenue goal and flat versus his
2016 pace. In his 2018 mid-year evaluation, Pollock was at sixty-four percent
of his annual revenue goal, and rated as "does not meet expectations." Pollock
explained that his sales of fixed annuities were not paying as well as they were
previously, which he acknowledged was not Dunn's fault.
On November 1, 2017, Pollock received a verbal warning from Dunn, and
they met twice to review certain expectations moving forward. These
expectations included Pollock scheduling fifteen weekly appointments, keeping
his manager apprised of his activities, weekly check-ins, participation in "branch
call night," and coaching branch employees. Pollock said he assumed all these
tasks were within the requirements of all FAs who reported to Dunn.
Following the verbal warning, Dunn issued a written warning to Pollock,
on April 11, 2018, stating that Pollock was not meeting expected performance
"of the PNC Investment Advisor position." The warning noted that Pollock was
not creating enough activity with his clients, referrals, and branch customers to
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meet his weekly appointment requirement. The warning stated that "immediate
and sustained improvement is required." The warning further noted that Pollock
had "[zero] new clients" between November 1, 2017, and February 28, 2018.
On June 20, 2018, Dunn placed Pollock on probation. The notice stated
under "Corrective Action Details":
Steve is not meeting the expected performance and
behaviors of the Investment Advisor position.
Specifically, Steve is not creating enough activity
between his clients, referrals, and prospects that come
into the branch to meet the appointment expectation.
The goal is [fifteen] appointments weekly, however,
since his written warning Steven has been averaging
[six] per week.
Pollock's probation expired on September 20, 2018. After the probation
period ended, Pollock voluntarily resigned on September 28, 2018. Plaintiffs
admitted that they have no information regarding who, if anybody, made the
decisions relating to the activity or revenue goals set for them. Notably, Dunn
testified that he did not set these goals, and that they were set by the Finance
Department, after undertaking an analysis of the branches each FA served year
to year.
The record does not indicate that Dunn instituted the weekly tracking
requirements to burden or single out Rocks or Pollock. Six other FAs, with ages
ranging from thirty-one to fifty-nine, were also required to submit to Dunn
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weekly appointment tracker reports because they were under ninety percent of
their revenue goals. Of the six other FAs required to submit weekly tracking
reports to Dunn, four were under the age of forty when plaintiffs resigned on
September 28, 2018.
Plaintiffs admitted that Dunn maintained the same expectations for
plaintiffs as he did for all FAs. Furthermore, plaintiffs admitted Dunn had no
requirements for plaintiffs that were not also required from other FAs. Dunn
required fourteen FAs to have weekly calls with him and submit weekly
appointment trackers, including plaintiffs' witness, Litwin. Dunn's other FAs,
many of whom who were under forty, all were required to schedule fifteen
appointments weekly. Dunn also had weekly calls with Litwin, required him to
submit an appointment tracker, and to schedule fifteen weekly appointments.
Dunn also issued both verbal and written warnings to Litwin for insufficient
business activity.
The record does not indicate anyone at PNC, including Dunn, ever
singled out plaintiffs for discriminatory or derogatory comments regarding their
age. While employed at PNC, Rocks reported to PNC that Dunn discussed
retirement with her; however, she admitted she did not feel pressured to retire.
Plaintiffs complain only of Dunn's comments regarding what he would do when
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he retired. Pollock admitted Dunn merely relayed his own retirement plans
during these conversations. Dunn acknowledged that he discussed his own
hypothetical retirement plans with Pollock, recounting that he would say "my
plans are . . . when I get to [sixty] or [sixty-five], . . . I'm going to be on a beach
somewhere."
Pollock began looking for a job as soon as he received the verbal warning
in 2017 and had been discussing leaving PNC with Litwin since that point and
looking for a new job. Plaintiffs, along with Litwin, began working at LPL
Financial the day after they resigned.
On January 10, 2019, Rocks and Pollock filed a complaint against
defendants, asserting claims for 1) violation of the LAD; 2) defamation; and 3)
tortious interference with prospective business relationship. Following
discovery, defendants moved for summary judgment in January 2021, seeking
dismissal of plaintiffs' complaint in its entirety. Plaintiffs filed opposition to
defendants' motion as to their LAD claims; however, plaintiffs withdrew their
claims for defamation and tortious interference. On February 19, 2021,
following oral argument, the trial court granted defendants' motion for summary
judgment, dismissing plaintiffs' LAD claims.
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II.
"We review de novo the trial court's grant of summary judgment, applying
the same standard as the trial court." Abboud v. Nat'l Union Fire Ins., 450 N.J.
Super. 400, 406 (App. Div. 2017) (citing Templo Fuente de Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). This standard
mandates the grant of summary judgment "if the pleadings, depositions, answers
to interrogatories[,] and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c).
"An issue of fact is genuine only if, considering the burden of persuasion
at trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact." Ibid. The trial court should not
hesitate to grant summary judgment "when the evidence 'is so one-sided that one
party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
The LAD provides, in relevant part:
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It shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination:
a. For an employer, because of the race,
creed, color, national origin, ancestry, age,
marital status, civil union status, domestic
partnership status, affectional or sexual
orientation, genetic information, sex,
gender identity or expression [or]
disability…to refuse to hire or employ or
to bar or to discharge or require to retire,
unless justified by lawful considerations
other than age, from employment such
individual or to discriminate against such
individual in compensation or in terms,
conditions or privileges of employment
....
[N.J.S.A. § 10:5–12(a).]
Prima Facie Case of Age Discrimination
To establish a prima facie case of age discrimination, "an employee must
'show that the prohibited consideration played a role in the decision-making
process and that it had a determinative influence on the outcome of that
process.'" Bergen Com. Bank v. Sisler, 157 N.J. 188, 207 (1999) (citations
omitted). To prove employment discrimination under the LAD, New Jersey
courts have adopted the burden-shifting analytical framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Viscik v. Fowler
Equip. Co., 173 N.J. 1, 13-14 (2002).
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To successfully assert a prima facie case of age discrimination under the
LAD, plaintiffs must show that: 1) they were members of a protected group; 2)
their job performance met their employer's legitimate expectations; 3) they were
terminated; and 4) the employer replaced or sought to replace them. Nini v.
Mercer Cnty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div. 2009) (citing
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005)) aff'd, 202 N.J. 98
(2010).
If a plaintiff presents such a prima facie case under the McDonnell
framework, the defendant must then offer a legitimate, nondiscriminatory reason
for the action. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000);
Barbera v. DiMartino, 305 N.J. Super. 617, 634 (App. Div. 1997), certif. denied,
153 N.J. 213 (1998). Once the employer produces sufficient evidence to support
a nondiscriminatory explanation for its decision, it becomes the plaintiff's
burden under the McDonnell test to persuade the jury that the employer's
asserted business reasons were only a pretext for discrimination. Reeves, 530
U.S. at 143; see also DeWees v. RCN Corp., 380 N.J. Super. 511, 523-24 (App.
Div. 2005).
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Plaintiffs contend that Dunn discriminated against them because of their
age by speaking with plaintiffs about retirement and by subjecting plaintiffs to
the weekly appointment requirements. This argument lacks merit.
Dunn's comments about retirement were about his personal plans and
wishes for his own retirement. The record simply does not support plaintiffs'
contention that Dunn made these comments with an eye toward forcing plaintiffs
to resign.
Subjecting plaintiffs to the weekly appointment requirement also did not
constitute age discrimination. As noted by defendants, plaintiffs were not the
only FAs subjected to the weekly appointment requirements, but several other
younger FAs also had to satisfy the weekly appointment requirements. The
record plainly does not support plaintiffs' contentions that the weekly
appointment requirements constituted age discrimination in violation of the
LAD.
Hostile Work Environment
"Our review of a hostile work environment claim requires us to consider
the totality of the circumstances." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J.
Super. 145, 178 (App. Div. 2005) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J.
587, 603-04 (1993)). To establish a hostile work environment claim under the
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LAD, a plaintiff must satisfy each prong of a four-part test. Shepherd v.
Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002). The plaintiff must
establish "the complained-of conduct 1) would not have occurred but for the
employee's protected status, and was 2) severe or pervasive enough to make a
3) reasonable person believe that 4) the conditions of employment have been
altered and that the working environment is hostile or abusive." Ibid. (citing
Lehmann, 132 N.J. at 603-04).
The inquiry is whether a reasonable person in a plaintiff's position would
consider the alleged discriminatory conduct "to be sufficiently severe or
pervasive to alter the conditions of employment and create an intimidating,
hostile or offensive working environment." Ibid. (quoting Heitzman v.
Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999)).
The test is strictly objective: whether a reasonable person in the plaintiff's
position would consider the work environment hostile. Godfrey v. Princeton
Theological Seminary, 196 N.J. 178, 197 (2008). A constructive discharge
occurs when an employer engages in "severe or pervasive" conduct that is "so
intolerable . . . a reasonable person would be forced to resign rather than
continue to endure it." Shepherd, 174 N.J. at 28 (quoting Jones v. Aluminum
Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)). "[T]he standard
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envisions a 'sense of outrageous, coercive and unconscionable requirements.'"
Ibid. The heightened standard demanded for proof of a constructive discharge
claim recognizes an employee's "obligation to do what is necessary and
reasonable to remain employed rather than" resign or retire. Ibid. (quoting
Shepherd, 336 N.J. Super. at 420). The proofs required to establish a
constructive discharge are objective, i.e., whether a "reasonable person" would
have resigned. Ibid.; see also Muench v. Twp. of Haddon, 255 N.J. Super. 288,
302 (App. Div. 1992).
The record does not show that plaintiffs suffered from a hostile work
environment. Dunn's statements to plaintiffs about retirement mostly concerned
his own plans and wishes for retirement. Dunn's comments were innocuous and
infrequent. Accordingly, we are satisfied that Dunn's comments about
retirement were not "severe or pervasive enough to alter the conditions of
employment and create an intimidating, hostile, or offensive work
environment." El-Sioufi, 382 N.J. Super. at 178.
The record clearly shows that plaintiffs did not suffer a constructive
discharge as FAs at PNC Investments. The weekly appointment requirements
may have been burdensome, but the requirements were based on plaintiffs'
subpar performance. The weekly appointment requirements were imposed to
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increase the performance of low-producing FAs. Indeed, the weekly
appointment requirements could hardly be considered "outrageous, coercive, or
unconscionable requirements." Shepherd, 174 N.J. at 28.
We discern no indication the weekly appointment requirements were so
burdensome that a reasonable person would rather resign than endure them.
Ibid. The weekly appointment requirements were implemented to increase
business, rather than to punish under-performing FAs. Even if the weekly
appointment requirements were perceived as punitive in nature, plaintiffs
provided no evidence that the requirements were punitive as applied to plaintiffs
because of their ages.
In sum, the evidence in the record before us, even when viewed in the
light most favorable to plaintiffs, does not support either a prima facie case of
age discrimination or a hostile work environment. Accordingly, we are satisfied
the trial court properly granted summary judgment in defendants' favor.
Any arguments not addressed lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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